How is Custody Determined in Illinois?

In determining custody, the Court will always look to the best interests of the child or the children.  Some factors the Court may look at are: the wishes of the parents and the child, relationships between the child with the parents and other family members, health of the parties, and a child’s adjustment to his environment, among other factors.

One factor that is very important but is often dismissed, at least by the parents who might be in the midst of a contentious custody battle, is the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and child.  So what can this mean?  While all cases are different and results are very fact-specific, some examples are portraying the other parent in a positive light to your children, encouraging visitation between the child and other parent; encouraging communication between the child and parent.  In short, it means putting your own problems with the other parent aside for the betterment of your child.  Often times, one parent feels the need to disparage the other parent, but by doing that, they are showing the court that they are unable to facilitate a relationship between their child and the other parent.

This could very well mean the difference between obtaining joint custody and sole custody.

SO WHAT IS THE DIFFERENCE BETWEEN JOINT CUSTODY, SOLE CUSTODY, AND SHARED CUSTODY?

JOINT CUSTODY

Joint custody means that both parents will share in the  legal custody of the child and only one parent will have primary residential custody  Parents who have joint legal custody make decisions together regarding the major decisions in the child’s life, including medical, school and religion decisions.  Joint custody has very little bearing on visitation schedules, and often times parents with joint custody and situations where one parent has sole custody have very similar visitation schedules.

SOLE CUSTODY

Sole custody means that only one parent will have the power, right, and responsibility for all major child-related decisions.  However, generally speaking, sole custody does not mean the other parent is cut out of the equation – both parents are entitled to the records of the child regarding medical, dental, school, and child care.

SHARED CUSTODY

Traditionally, both joint and sole custody result in the child residing primarily with one parent while the other parent has visitation and pays child support.  Another option is shared custody – which is not often utilized and when it is, it is typically by agreement, rather than Court Order.  In shared custody, each parent has the child 50% of the time. This has been done in a variety of ways – where the parents live close together they transport the children either every 3-4 days, or every other week. In some unique scenarios, the children reside in the same house all the time, and the parents alternate when they will be there with the children. When dealing with shared custody scenarios, neither parent will pay child support to the other unless there is a large disparity in income.

HOW DO I KNOW WHAT IS RIGHT FOR ME AND MY CHILD?

While there is no blanket test to determine what type of custodial situation is best, there are certain questions that you should ask yourself, such as:

  • How far do I live from the other parent?

  • Can I discuss and come up with solutions with the other parent?

  • Are my views fundamentally different from the other parent?

  • To what extent do both I and the other parent want to be involved?

  • How do the other parent and communicate now? How do I think the other parent and I will communicate in 1 years, 5 years, 10 years?

These questions are not intended to be an inclusive list, but will get you on the right path to determine what type of custody you think is best for you and your family.

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